Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3488/19 in Comm. Suit No. 687/21. 1 Order.
MHCC010095272019
Presented on : 19-09-2019
Registered on : 19-09-2019
Decided on : 06-05-2022
Duration : 2 years, 7 months, 17 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3488 OF 2019
IN
COMMERCIAL SUIT NO. 687 OF 2021
(OLD SUMMARY SUIT NO. 670 OF 2018)
Mr. Ashok Saibu Gadge ...Plaintiff
Versus
Mr. Lalmani Ramlakhan Yadav ...Defendant
AND
The Manager / Accountant
The Mahanagar Telephone Nigam Limited ...Respondent
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 6th MAY, 2022.
Shri Balbheem Patil, Advocate for the plaintiff.
Shri Sandeep Dhuri, Advocate for the defendant.
ORDER
1. The plaintiff has filed present notice of motion for directing
the defendant to furnish security to the satisfaction of Rs.5,82,500/
and on his failure to attach GPF and all retirement payments payable to
the defendant by MTNL, Ghatkopar (West) as per Order XXXVIII Rule
-- 1 of 3 --
N/m No. 3488/19 in Comm. Suit No. 687/21. 2 Order.
5(3) of the CPC. Perused notice of motion and affidavit in reply. I have
gone through the suit proceeding. Heard learned counsel Balbheem
Patil for the plaintiff and learned counsel Sandeep Dhuri for the
defendant.
2. On perusal of affidavit in support, affidavit in reply and
pleadings in the plaint, it appears that the plaintiff had advanced loan
of Rs.5,00,000/ with interest at the rate of 18% p.a. to the defendant
on execution of Promissory Note dated 14/06/2017. Now, the plaintiff
has moved this notice of motion to secure repayment of the loan
amount with interest. It is his contention that the defendant is working
in MTNL, Ghatkopar (West) and he was going to retire on 30/09/2019
and settle at his native place. The defendant is not having any movable
or immovable property within the jurisdiction of Mumbai city. On the
contrary, the defendant opposed the notice of motion by stating that all
these amounts cannot be attached. If Section 60 of the CPC is read
carefully, it has been specified that stipends, gratuities allowed to
pensioners of the government, provident funds and any allowance
declared by law to be exempt from liability to attachment cannot be
attached. Similarly, Order XXXVIII Rule 5(4) of the CPC provides that
attachment made without complying with the provisions of subrule (1)
of this Rule shall be void. The plaintiff has not brought on record
sufficient material to satisfy the Court that the defendant, with intent to
obstruct or delay the execution of any decree is likely to dispose off his
property or to remove the same from the local limits of this Court.
Therefore, neither security is required to be taken from the defendant
nor order of attachment is required to be passed. It is pertinent to note
that the plaintiff has not filed summons for judgment after appearance
of the defendant and he proceeded to press for the reliefs mentioned in
-- 2 of 3 --
N/m No. 3488/19 in Comm. Suit No. 687/21. 3 Order.
present notice of motion. For all these reasons, I pass the following
order :
ORDER
1. Notice of Motion No. 3488/2019 is dismissed.
2. The proceeding of N/m No. 3488/2019 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 06/05/2022. Mumbai.
1. Dictated online on : 06/05/2022.
2. Signed on : 06/05/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/05/2022. 4.49 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/05/2022.
Judgment/Order signed by P.O. on 06/05/2022.
Judgment/Order uploaded on 06/05/2022.
-- 3 of 3 --